Men’s Rights During Divorce in Texas

December 22, 2022 | Kate Smith

Divorce court has not always been a friendly place for men. Family law’s reliance on outdated gender norms meant that men often weren’t given a fair shake in divorce and child custody matters. Fortunately, the laws have changed with the times, and men and women are now considered on equal footing in these matters. Read this article to learn more about men’s rights during divorce in Texas.

Bottom Line

Although men and women have the same legal rights during divorce, it may not be applied in that way. A family law attorney will ensure their client is treated fairly during the divorce process.

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A Quick Look at the Past: Tender Years’ Doctrine

At one time, Texas family law courts based most custody decisions on the tender years’ doctrine. The tender years are generally regarded as birth to four years old. This legal doctrine was predicated on the belief that young children needed their mothers more than their fathers. As a result, fathers could typically only gain custody if they could prove the mother was unfit.

As scientific research expanded, so did the importance of the father’s role in a child’s life. The legal standard shifted from the tender years’ doctrine toward the best interest of the child standard, which “focused attention on what was best for the child, whether it was parenting from the mother or from the father.” source: I Love You, You Love Me, Can You Come up With a Happy Visitation Schedule, Please?: Analyzing the Reform of Texas’s Parental Possession Schedule for Children Less Than Three Years of Age, 45 Tex. Tech L. Rev. 499, 509

Present Day: Best Interests of the Child

Fathers have the same right to parent their children as mothers do. In fact, Texas law specifically prohibits family courts from making child custody decisions based on gender. Texas Family Code § 153.003

Instead, Texas family courts begin each custody case with the presumption that the children should have frequent contact with both parents. This does not automatically mean that both parents will have equal possession of and access to the child, however.

In determining the best interest of a child, a court may consider factors such as:

  1. the child’s current and future emotional and physical needs
  2. each parent’s ability to provide for the child’s emotional and physical needs
  3. the stability of each parent’s home environments
  4. the existence of or potential for emotional or physical danger to the child
  5. the parental abilities of each person seeking custody
  6. the programs available to assist the parents in promoting the best interest of the child
  7. the parent’s plans for the child by the individual seeking custody
  8. the acts or omissions of the parent that may indicate the existing relationship is improper
  9. any excuse for the acts or omissions of the parent 
  10. the child’s wishes (for older children)
     In the Int. of K.L.S., No. 11-21-00094-CV, 2022 Tex. App. (Tex. App. Feb. 10, 2022)

A Father Gets Custody

In the above-cited case, In the Interest of K.L.S., a Taylor County court named the father as sole managing conservator. The mother appealed, but the 11th Court of Appeals upheld the lower court’s decision:

“The evidence was sufficient for the trial court to find that Father met K.L.S.’s emotional and physical needs, that Mother presented emotional or physical dangers to K.L.S., that Mother had a history of family violence against Father, that Father was able to care for K.L.S. and had a plan to do so, and that Father provided a stable home environment for K.L.S.” In the Int. of K.L.S., No. 11-21-00094-CV, 2022 (Tex. App. Feb. 10, 2022)

The court determined the father was the more fit parent and made custody decisions accordingly, regardless of gender.

Men’s Rights and Child Support

Child support is one of the most hotly contested issues regarding men’s rights during divorce. Many times, men assume they will automatically have to pay child support.

In most cases, however, physical custody — the amount of time a parent spends with a child — determines who pays child support. Typically, the possessory conservator (the parent with the least access to the child) pays child support to the managing conservator. However, this is not always the case.

In a recent divorce, a Tarrant County court named the parents joint managing conservators and designated the mother as the primary decision-maker for their son’s residence, healthcare, and education. However, the court also ordered the mother to pay child support to the father.

The mother appealed, but the 2nd Circuit Court found that:

“Mother’s average monthly income far outweighed Father’s, that his monthly expenses exceeded his monthly income… that Father could not afford to pay for C.L.’s activities when C.L. was with him on weekends, and that Mother wanted C.L. to have a comparable living situation in both homes if possible supports the trial court’s ordering Mother to pay Father child support.” S.L. v. S.L., No. 02-19-00017-CV (Tex. App. July 30, 2020)

Men’s Rights and Property Division

Texas is a community property state. This means all marital property is considered the property of both spouses unless one spouse can show otherwise. Texas courts must divide community property “in a manner that the court deems just and right.” Tex. Fam. Code § 7.001

This does not mean the court will divide the property equally. It means the court must consider the rights of both the husband and wife in order to make a fair decision.

Men’s Rights and Alimony

Spousal support, commonly referred to as alimony, is another hot-button issue regarding men’s rights during divorce. However, Texas courts seldom award spousal support to either party regardless of gender.

In Texas, the court will award spousal support only if the spouse seeking maintenance is unable to meet his or her minimum reasonable needs after the divorce is finalized.

If a party is awarded sufficient assets in the final decree of divorce, the court will rarely consider them eligible for post-divorce spousal maintenance. Tex. Fam. Code § 8.051 

Call a Texas Family Law Attorney Today

Gender should not factor into a family court’s decision. However, if you are divorcing your wife, you need an experienced family law attorney to ensure the facts are accurately presented to the court so your rights are safeguarded. Call 214-884-3775 today to begin your free case assessment.

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